Measure proposes unwarranted infringement of constitutional guarantees
by the Herald-Tribune, Editorial
February 6, 2017
The Florida Constitution provides that every individual has a right of access to public records which are made or received in connection with official public business.
The Public Records Act, Chapter 119 of Florida Statutes, expressly guarantees every person’s right to inspect and copy any state or local government public record at any reasonable time, under reasonable conditions, and under the supervision of the public records custodian.
Those strong statements were written by analysts working for the Florida Legislature.
Unfortunately, the analysis issued this week refers to Senate Bill 80, which would undermine the ability of Floridians to ensure that their state and local governments comply promptly and thoroughly with open-records provisions.
Employees of state and local governments, especially those who are well trained, routinely comply with public-records requests. Yet, in too many instances, records are withheld or prompt compliance does not occur.
Floridians might think that, in light of “guarantees,” their state would have a system in place to ensure rapid release of public documents – without a significant expenditure of time or financial resources. Yet members of the public too often must resort to the threat or filing of a lawsuit to gain access to the records to which they are entitled. Lawsuits are costly and time-consuming.
Longstanding state law has recognized that Floridians should not have to gamble with their financial security to exercise their legal and constitutional rights. So, Chapter 119 states that, if a court finds that an agency or custodian of records unlawfully refused access to a public record, the presiding judge “shall” order the responsible party to pay court costs and fees related to enforcement of the law.
Last year, then-state Rep. Greg Steube of Sarasota filed House Bill 1021, which sought to change “shall” to “may,” giving judges the option of requiring individuals or organizations denied public records to absorb the significant costs and fees associated with a prevailing lawsuit. Fortunately, the bill did not pass.
But Steube, now a Republican senator, is back at it. His Senate Bill 80 proposes the same change in wording as his House bill did and would require plaintiffs to wait five business days before suing over denial of records.
The First Amendment Foundation, open-government groups and newspaper editorials from throughout the state have characterized Steube’s bill as an unwarranted attempt to undermine the principles of public access expressed in the constitution and law. We agree.
The bill is harmful on its face, and does not include standards indicating when, and for what reasons, judges would not be required to order the prevailing plaintiff’s costs and fees to be paid. (Remember, the plaintiff must prove that records were unlawfully withheld before a judge can order payment of those expenses.)
Some unsavory characters have abused the records law – making requests at obscure government offices or to business owners in custody of records considered public, and then quickly offering to settle, at a cost. We have urged courts and Florida Bar to crack down on lawyers who use these tactics and supported legislation to mandate that records requests be filed with the trained custodians of government agencies, thereby exempting businesses.
A bill making such reasonable changes passed the Senate last year but died in the House. That legislation has been refiled this year as SB 246 and offers a better alternative to Steube’s draconian bill.
Steube’s SB 80 will be heard Tuesday by the Governmental Oversight and Accountability Committee, which includes Sen. Bill Galvano, R-Bradenton. We urge the committee to conclude that this proposal is unnecessary and inconsistent with constitutional principles, well-established law and the public’s interest. [READ MORE]